[Deschler's Precedents, Volume 8, Chapter 26]
[Chapter 26. Unauthorized Appropriations; Legislation on Appropriation Bills]
[E. Provisions as Changing Existing Law; Provisions Affecting Executive Authority; Imposition of New Duties on Officials]
[Â§ 59. Defense and Foreign Relations]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 6190-6213]
 
                               CHAPTER 26
 
    Unauthorized Appropriations; Legislation on Appropriation Bills
 
    E. PROVISIONS AS CHANGING EXISTING LAW: PROVISIONS AFFECTING 
     EXECUTIVE AUTHORITY; IMPOSITION OF NEW DUTIES ON OFFICIALS
 
Sec. 59. Defense and Foreign Relations

Buy-America; Equating Standards of Quality or Performance

Sec. 59.1 It is not in order on a general appropriation bill to 
    require, as a condition to the availability of funds, the 
    imposition of standards of quality or performance not required by 
    law, whether or not such standards are applicable by law to other 
    programs or activities.

    On Nov. 18, 1981,(3) an amendment to a general 
appropriation bill prohibiting the use of funds therein to procure 
foreign-made items unless their inspection for quality assurance ``uses 
the same standards'' which would be required for domestic products by 
the Department of Defense was ruled out as legislation imposing 
additional duties absent any showing that existing law already required 
such inspection of items produced in foreign countries. The 
proceedings, during consideration of the defense appropriation 
bill,(4) were as follows:
---------------------------------------------------------------------------
 3. 127 Cong. Rec. 28076, 28077, 97th Cong. 1st Sess.

 4. H.R. 4995.

        Mr. [Jim] Dunn [of Michigan]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Dunn: Page 68 after line 15, 
        insert the following:
            Sec. 792. None of the funds appropriated in this Act may be 
        available for the procurement of any item manufactured in a 
        foreign country unless, during manufacture, the inspection of 
        such item for quality assurance uses the same standards of 
        inspection during manufacture which would be required by the 
        Department of Defense if such item were manufactured 
        domestically.

        Mr. Dunn [during the reading]: Mr. Chairman, I ask unanimous 
    consent that the amendment be considered as read and printed in the 
    Record.

[[Page 6191]]

        The Chairman: (5) Is there objection to the request 
    of the gentleman from Michigan?
---------------------------------------------------------------------------
 5. Daniel D. Rostenkowski (Ill.).
---------------------------------------------------------------------------

        There was no objection.

        Mr. [Bill] Frenzel [of Minnesota]: Mr. Chairman, I rise to make 
    a point of order against the amendment.

        The Chairman: The Chair recognizes the gentleman from Minnesota 
    (Mr. Frenzel) on his point of order.

        Mr. Frenzel: Mr. Chairman, in my judgment the amendment is 
    contrary to rule XXI, clause 2, which provides that no amendment 
    changing existing law can be made on an appropriation bill. The 
    amendment clearly gives the Secretary additional duties, to 
    determine what kind of quality assurance or inspection is required 
    under the terms of the amendment and, therefore, the amendment 
    constitutes legislation on an appropriation bill.

        Mr. Chairman, I believe the point of order should be sustained.

        The Chairman: Does the gentleman from Michigan wish to be heard 
    on the point of order?

        Mr. Dunn: Mr. Chairman, the gentleman, I believe, is incorrect. 
    The Secretary already has that discretion. We are simply, in this 
    amendment, trying to make certain that the powers that he uses for 
    national companies are the same as for international companies. He 
    already has that power. It does not change his power.

        The Chairman: As the Chair reads the amendment, there is 
    clearly a mandatory authority imposing additional duties; absent 
    any showing that existing law already requires such inspection of 
    items produced in foreign countries, the Chair sustains the point 
    of order made by the gentleman from Minnesota (Mr. Frenzel).

    Parliamentarian's Note: This decision effectively overrules the 
ruling of the Chair on July 28, 1959,(6) wherein an 
amendment denying use of funds to finance construction projects abroad 
that had not met the criteria used in determining the feasibility of 
flood control projects in the United States was held a proper 
limitation, despite any lack of showing that existing law required 
domestic standards to be applied to foreign construction projects.
---------------------------------------------------------------------------
 6. 105 Cong. Rec. 14522, 14524, 86th Cong. 1st Sess.
---------------------------------------------------------------------------

    It should be noted that it is not just the imposition of new 
standards that constitutes legislation rendering language subject to a 
point of order, but the requirement of new procedures or duties 
involved in making the standards applicable in a setting not 
contemplated in the existing law.

Defense Contractors Employing Retired Officers

Sec. 59.2 An amendment providing that none of the funds appropriated in 
    the bill were to be used to enter into con

[[Page 6192]]

    tracts with any concern having on its payroll a retired or inactive 
    military officer was held to be a limitation and in order.

    On June 3, 1959,(7) during consideration of H.R. 7454 
(making appropriations for the Department of Defense), proceedings took 
place as follows:
---------------------------------------------------------------------------
 7. 105 Cong. Rec. 9741, 9742, 86th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            The appropriation to the Department of Defense for 
        ``Construction of ships, Military Sea Transportation Service,'' 
        shall not be available for obligation after June 30, 1959.

        Mr. [Alfred E.] Santangelo [of New York]: Mr. Chairman, I offer 
    an amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Santangelo: On page 25, after line 
        17, add new section, as follows:

                              ``General Provisions

            ``Sec. 301. None of the funds contained in this Title may 
        be used to enter into a contract with any person, organization, 
        company or concern which provides compensation to a retired or 
        inactive military or naval general officer who has been an 
        active member of the military forces of the United States 
        within 5 years of the date of enactment of this act.''. . .

        Mr. [Gerald R.] Ford [Jr., of Michigan]: Mr. Chairman, I renew 
    my point of order. I agree that there are abuses indicated by the 
    gentleman from New York [Mr. Santangelo]. I think those abuses 
    should be corrected. But, I think at this point, this is the wrong 
    way to do it, and for that reason I make the point of order. In my 
    opinion, this amendment or this limitation places additional 
    burdens on the executive branch of the Government which are not now 
    required by law, and therefore it is legislation on an 
    appropriation bill; therefore subject to a point of order. . . .
        Mr. Santangelo: . . . This is not legislation upon an 
    appropriation bill. This is a limitation of expenditures and 
    restrictions as to the way they shall spend these funds, and it is 
    in no wise legislation. I submit it does not violate the 
    parliamentary rules. . . .
        The Chairman: (8) The Chair is prepared to rule.
---------------------------------------------------------------------------
 8. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------

        The gentleman from New York [Mr. Santangelo] offered an 
    amendment in the nature of an addition to the pending bill by 
    adding a new section, the language of which was reported with the 
    amendment: None of the funds contained in this title may be used to 
    enter into a contract with any person, organization, company, or 
    concern which provides compensation to a retired or inactive 
    military or naval general officer who has been an active member of 
    the military forces of the United States within 5 years of the date 
    of enactment of this act, to which amendment the gentleman from 
    Michigan makes the point of order that it is legislation on an 
    appropriation bill.
        It is obvious that the intent of this amendment is to impose a 
    limitation on the expenditure of the funds here appropriated, and 
    while the point

[[Page 6193]]

    might be made that imposing limitations will impose additional 
    burdens, it is nevertheless the opinion of the Chair clearly a 
    limitation on expenditures, and therefore the Chair overrules the 
    point of order.

    Parliamentarian's Note: On May 5, 1960,(9) an amendment 
providing that none of the funds appropriated in the bill may be used 
to enter into contracts with any concern having on its payroll a 
retired military officer was held to be a limitation not imposing 
additional duties on the executive branch.
---------------------------------------------------------------------------
 9. 106 Cong. Rec. 9634-36, 86th Cong. 2d Sess.
---------------------------------------------------------------------------

    The amendment in question, offered during consideration of H.R. 
11998, a bill making appropriations for the Department of Defense, 
stated:

        [Add] new section as follows:
        ``Sec. 535. None of the funds contained in this Title may be 
    used to pay or reimburse any Defense Contractor which employs a 
    retired commissioned officer within two years after his release 
    from active duty for the purpose of selling or aiding or assisting 
    in the selling of anything of value to the Department of Defense or 
    an Armed Force of the United States, or, which within two years 
    from the release from active duty of a retired commissioned officer 
    knowingly permits any such retired commissioned officer to sell or 
    aid in the selling of anything of value to the Department of 
    Defense or an Armed Force of the United States.''

    It should be noted that the language above, unlike the language of 
the 1959 amendment, would seemingly require some determinations to be 
made by federal officials with regard to whether a defense contractor 
``knowingly'' permitted the proscribed acts, as well as the 
``purposes'' for which a retired officer was employed. These complex 
determinations would now probably be considered such additional burdens 
placed on an official as would render the language subject to the point 
of order.
    In another ruling, on June 15, 1972,(10) an amendment to 
a general appropriation bill providing that none of the funds therein 
be used to purchase goods or services from suppliers who compensate any 
of the officers or employees in excess of a certain rate was held a 
valid limitation on the use of funds in the bill. Although it 
coulampshire]: Mr. Chairman, I rise on a point of order.

        The Chairman: The gentleman will state his point of order.
        Mr. Wyman: My point of order is that section 743 as presently 
    worded is contrary to the rules of the House in that it is 
    legislation upon an appropriation bill in violation of rule XXI, 
    subsection 2. The section contains the positive amendment in line 
    25, page

[[Page 6194]]

    51, that a certain amount of work must be made available, and on 
    page 52, lines 3 and 4, there is a specific direction to the 
    Secretary of Defense.

        Paragraph 842 of the House Rules Manual, pursuant to rule XXI, 
    subsection 2, provides: ``Propositions to establish affirmative 
    directions for executive officers, eing any additional duties on 
    the executive branch and therefore in order.

    On May 5, 1960,(11) the Committee of the Whole was 
considering H.R. 11998, a bill making appropriations for the Department 
of Defense. The following proceedings took place:
---------------------------------------------------------------------------
11. 106 Cong. Rec. 9641, 86th Cong. 2d Sess.
---------------------------------------------------------------------------

        Amendment offered by Mr. [James G.] O'Hara of Michigan: On page 
    45, after line 6, insert the following:
        ``Sec. 535. No funds appropriated in this Act shall be used to 
    pay any amount under a contract, made after the date of enactment 
    of this Act, which exceeds the amount of a lower bid if such 
    contract would have been awarded to the lower bidder but for the 
    application of any policy which favors the award of such a contract 
    to a person proposing to perform it in a facility not owned by the 
    United States.''
        And renumber the following section.
        Mr. [Gerald R.] Ford [Jr., of Michigan]: Mr. Chairman, I am 
    constrained to make a point of order against the amendment offered 
    by the gentleman from Michigan [Mr. O'Hara]. It seems to me this 
    language is clearly subject to a point of order in that it imposes 
    additional duties on the Secretary of Defense. . . .
        Mr. O'Hara of Michigan: Mr. Chairman, I would like to suggest 
    in connection with the point of order that this is a limitation on 
    an appropriation. It does not attempt to impose any additional 
    duties on the executive branch nor does it attempt to legislate in 
    an appropriation bill.
        The Chairman: (12) The Chair is ready to rule. . . .
---------------------------------------------------------------------------
12. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------

        The Chair calls the attention of the committee to previous 
    rulings made on similar points of order and would like in addition 
    to call to the attention of the Committee the ruling that appears 
    in 4 Hinds' Precedents, page 660, in which it is clearly indicated 
    that a limitation is permitted on a general appropriation bill that 
    in effect provides a negative prohibition on the use of the money, 
    and no affirmative direction on the executive branch.
        In the opinion of the Chair, the language here offered is a 
    negative prohibition and the Chair, therefore, overrules the point 
    of order.

Defense Contracts; Requiring Renegotiation Agreement

Sec. 59.4 To a bill making appropriations for national defense, an 
    amendment providing that no part of such appropriation be used for 
    payments under certain contracts until the contractor shall have 
    filed with the appropriate agency a certificate of costs and an 
    agreement for renegotiation satis

[[Page 6195]]

    factory to the Secretary of War or Secretary of the Navy, was 
    conceded to be legislation and held not in order, in that it 
    granted new authority to an executive officer.

    On Mar. 28, 1942,(13) the Committee of the Whole was 
considering H.R. 6868. The following proceedings took place:
---------------------------------------------------------------------------
13. 88 Cong. Rec. 3139, 77th Cong. 2d Sess.
---------------------------------------------------------------------------

        Amendment offered by Mr. [Francis H.] Case of South Dakota: 
    Page 36, after line 11, insert a new section as follows:
        ``Sec. 402-A. No part of any appropriation contained in this 
    act shall be available to pay that portion of a contract for 
    construction of any character and/or procurement of material and 
    supplies for either the Military or Naval Establishments, 
    designated as `final payment' until the contractor shall have filed 
    with the procuring agency a certificate of costs and an agreement 
    for renegotiation and reimbursement satisfactory to the Secretary 
    of War or the Secretary of the Navy as the case may be.''
        Mr. [Clarence] Cannon of Missouri: Mr. Chairman, I make the 
    point of order against the amendment that under the guise of a 
    limitation the amendment would require executive action.
        Mr. Case of South Dakota: Mr. Chairman, I concede the point of 
    order and offer another amendment.
        The Chairman: (14) The point of order is sustained.
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14. Schuyler Otis Bland (Va.).
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Qualification of Contractors; Secretary's Approval

Sec. 59.5 To a defense appropriation bill, an amendment providing that 
    certain funds therein shall not be used under contracts awarded or 
    negotiated after its date of enactment unless the Secretary of 
    Defense finds that such contracts are covered by a vested 
    retirement pension program approved by the Secretary was held to 
    impose additional duties on that federal official and was ruled out 
    as legislation in violation of Rule XXI clause 2.

    On Sept. 14, 1972,(15) during consideration in the 
Committee of the Whole of the Defense Department appropriation bill 
(H.R. 16593), a point of order was raised against the following 
provision:
---------------------------------------------------------------------------
15. 118 Cong. Rec. 30758, 92d Cong. 2d Sess.
---------------------------------------------------------------------------

        Amendment offered by Mr. [Barry M.] Goldwater [Jr., of 
    California]: On page 52, after line 8, insert the following:
        ``Sec. 745. No part of the funds appropriated under title IV or 
    V of the Act shall be made available in regard to contracts awarded 
    or negotiated after the enactment of this act unless the Secretary 
    of Defense shall first find

[[Page 6196]]

    that all persons employed under such contract or subcontract 
    thereunder, are covered by a vested retirement pension program 
    approved under such standards as the Secretary of Defense shall 
    prescribe.''
        Mr. [Sidney R.] Yates [of Illinois]: Mr. Chairman, I make a 
    point of order on the amendment offered by the gentleman from 
    California (Mr. Goldwater) that it is legislation on an 
    appropriation bill in that it requires additional duties on the 
    part of the Secretary. . . .
        The Chairman: (16) The Chair has examined the 
    language of the amendment. The language does place additional 
    duties on the Secretary and, therefore, holds that the amendment is 
    legislation and sustains the point of order.
---------------------------------------------------------------------------
16. Daniel D. Rostenkowski (Ill.).
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Ship Construction; Directing Percentage in Private Shipyards

Sec. 59.6 A section in a general appropriation bill requiring that at 
    least 35 percent of funds therein for naval vessel alteration, 
    overhaul, or repair shall be made available for such work in 
    private shipyards, except that the Secretary of Defense may 
    determine that urgency requires such work to be done in the Navy 
    yards or in private yards as he may direct, was conceded to be 
    legislation in violation of Rule XXI clause 2 in that it 
    established affirmative directions and was ruled out on a point of 
    order.

    On Sept. 14, 1972,(17) during consideration in the 
Committee of the Whole of the Defense Department appropriation bill 
(H.R. 16593), a point of order was raised against the following 
provision:
---------------------------------------------------------------------------
17. 118 Cong. Rec. 30749, 92d Cong. 2d Sess.
---------------------------------------------------------------------------

        The Chairman: (18) The Clerk will read.
---------------------------------------------------------------------------
18. Daniel D. Rostenkowski (Ill.).
---------------------------------------------------------------------------

        The Clerk read as follows:

            Sec. 743. Of the funds made available in this Act for the 
        alteration, overhaul, and repair of naval vessels, at least 35 
        per centum thereof must be made available for such work in 
        privately owned shipyards: Provided, That if determined by the 
        Secretary of Defense to be inconsistent with the public 
        interest based on urgency of requirement to have such vessels 
        altered, overhauled, or repaired as required, such work may be 
        done in Navy or private shipyards as he may direct.

        Mr. [Louis C.] Wyman [of New Hampshire]: Mr. Chairman, I rise 
    on a point of order.
        The Chairman: The gentleman will state his point of order.
        Mr. Wyman: My point of order is that section 743 as presently 
    worded is contrary to the rules of the House in that it is 
    legislation upon an appropriation bill in violation of rule XXI,

[[Page 6197]]

    subsection 2. The section contains the positive amendment in line 
    25, page 51, that a certain amount of work must be made available, 
    and on page 52, lines 3 and 4, there is a specific direction to the 
    Secretary of Defense.

        Paragraph 842 of the House Rules Manual, pursuant to rule XXI, 
    subsection 2, provides: ``Propositions to establish affirmative 
    directions for executive officers, even in cases where they may 
    have discretion under the law so to do,''--``are subject to the 
    point of order,'' as are positive requirements in such legislation 
    constituting legislation upon an appropriations bill.
        Mr. Chairman, I urge that the section be ruled out of order.
        Mr. [George H.] Mahon [of Texas]: Mr. Chairman, the point of 
    order is conceded.
        The Chairman: The point of order is conceded. The Chair 
    sustains the point of order.

Granting Discretionary Authority

Sec. 59.7 Language providing an appropriation for purposes which in the 
    discretion of the Secretary of the Army are desirable in expediting 
    production for military purposes was held to be legislation and not 
    in order.

    On Aug. 9, 1951,(19) during consideration in the 
Committee of the Whole of the Defense Department appropriation bill 
(H.R. 5054), a point of order was raised against the following 
provision:
---------------------------------------------------------------------------
19. 97 Cong. Rec. 9733, 82d Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

                             Expediting Production

            To enable the Secretary of the Army, without reference to 
        section 3734 of the Revised Statutes, as amended, and to 
        section 1136 of the Revised Statutes, as amended (except 
        provisions thereof relating to title approval), to expedite the 
        production of equipment and supplies for the Army for emergency 
        national defense purposes, including all of the objects and 
        purposes specified under each of the appropriations available 
        to the Department of the Army during the current fiscal year, 
        for procurement or production of equipment or supplies, for 
        erection of structures, or for acquisition of land; the 
        furnishing of Government-owned facilities at privately owned 
        plants: the procurement and training of civilian personnel in 
        connection with the production of equipment and material and 
        the use and operation thereof; and for any other purposes which 
        in the discretion of the Secretary of the Army are desirable in 
        expediting production for military purposes, $1,000,000,000.

        Mr. [Richard B.] Wigglesworth [of Massachusetts]: Mr. Chairman, 
    I make a point of order, on the ground that it is legislation on an 
    appropriation bill, against the language . . . reading as follows: 
    ``and for any other purposes which in the discretion of the 
    Secretary of the Army are desirable in expediting production for 
    military purposes.''
        The Chairman: (20) Does the gentleman from Texas 
    desire to be heard on the point of order?
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20. Eugene J. Keogh (N.Y.).

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[[Page 6198]]

        Mr. [George H.] Mahon [of Texas]: Mr. Chairman, I am not 
    prepared to say that the language is subject to a point of order. I 
    doubt, however, that the language is necessary. I have no serious 
    objection to the language being stricken from the bill, but I do 
    not want to concede that the language is subject to a point of 
    order.
        The Chairman: Can the gentleman refer the Chair to any specific 
    law with reference to this language?
        Mr. Mahon: I do not have the language of the basic legislation 
    before me, Mr. Chairman.
        The Chairman: The Chair is of the opinion that it is 
    legislation on an appropriation bill and therefore is subject to 
    the point of order. The point of order is sustained.

Requiring Sole Accounting and Reports on Confidential Military 
    Operations

Sec. 59.8 A paragraph in a general appropriation bill providing for 
    contingent expenditures by the Secretary of Defense to be accounted 
    for solely on his certificate that the expenses were for 
    confidential military purposes and providing for a quarterly report 
    of such disbursements to Congress was held to impose additional 
    duties on the Secretary and was ruled out as legislation.

    On Nov. 30, 1973,(1) during consideration in the 
Committee of the Whole of the Defense Department appropriation bill 
(H.R. 11575), a point of order was raised against the following 
provision:
---------------------------------------------------------------------------
 1. 119 Cong. Rec. 38825, 93d Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

                             Contingencies, Defense

            For emergencies and extraordinary expenses arising in the 
        Department of Defense, to be expended on the approval or 
        authority of the Secretary of Defense and such expenses may be 
        accounted for solely on his certificate that the expenditures 
        were necessary for confidential military purposes; $5,000,000: 
        Provided, That a report of disbursements under this item of 
        appropriation shall be made quarterly to Congress.

        Mr. [Robert C.] Eckhardt [of Texas]: Mr. Chairman, I wish to 
    reserve a point of order with respect to the whole section, and to 
    make the point of order with respect to the provisions reading as 
    follows:

            And such expenses may be accounted for solely on his 
        certificate that the expenditures were necessary for 
        confidential military purposes.

        The point of order which is stated and made is by the same 
    proposition made with respect to the same language which occurs 
    elsewhere in the bill. The point of order is reserved, which I do 
    not wish to make at this time until I check whether or not the 
    special contingencies defense is authorized by an authorization 
    bill or by existing statutory law.
        I point out to the Chair that the operation and maintenance 
    defense agencies provision had a section there of $5,448,000 in it 
    that was, of course, not disturbed by my previous point of

[[Page 6199]]

    order, and this appears to be made up so that the Defense 
    Department would have some $10,448,000 if this is included.
        The Chairman: (2) The Chair would like to make the 
    observation that the gentleman from Texas (Mr. Eckhardt) should 
    make his point of order while the paragraph is pending.
---------------------------------------------------------------------------
 2. Daniel D. Rostenkowski (Ill.).
---------------------------------------------------------------------------

        Mr. Eckhardt: Mr. Chairman, in that event, I will make both 
    points of order; one against the entire paragraph and the other 
    against the phrase involved. However, I would not press the point 
    of order--well, of course, if it is not justified, it can be shown 
    it is not justified, so I do make the two points of order.
        The Chairman: Does the gentleman from Texas (Mr. Mahon) wish to 
    be heard on the point of order?
        Mr. [George H.] Mahon: I do, Mr. Chairman.
        Mr. Chairman, 7 Cannon's Precedents 1273, February 13, 1919, 
    states:

            The organic law creating a department authorizes necessary 
        contingent expenses incident to its maintenance.

        This provision has been in the appropriation bill for decades, 
    and I am not able to cite anything more than I have cited in 
    defense of the language. This language has been carried in the 
    Defense Appropriations Act for as long as I can remember.
        The Chairman: The Chair notes that the paragraph does have 
    legislation, since it requires a report and imposes additional 
    duties. Therefore, the Chair sustains the point of order.
        Mr. Eckhardt: Mr. Chairman, that would be both points of order?
        The Chairman: The point of order is sustained against the 
    paragraph.

Requiring Reports on Feasibility Projects

Sec. 59.9 To a general appropriation bill making appropriations for 
    foreign assistance, an amendment prohibiting the use of any funds 
    carried in the bill for certain capital projects costing in excess 
    of $1 million until the head of the agency involved has received 
    and considered a report, prepared by officials within the agency, 
    on the justification and feasibility of such project was held to 
    impose additional duties and was ruled out as legislation.

    On Nov. 17, 1967,(3) during consideration in the 
Committee of the Whole of the foreign aid appropriation bill (H.R. 
13893), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
 3. 113 Cong. Rec. 32975, 90th Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [Jeffery] Cohelan [of California]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Cohelan: On page 14, immediately 
        after line 16, insert the following:
            ``Sec. 120. None of the funds appropriated or made 
        available by this

[[Page 6200]]

        Act for carrying out titles I, II, and VI of chapter 2, and 
        chapter 4, of part I of the Foreign Assistance Act of 1961, as 
        amended, may be used for financing, in whole or in part, any 
        capital assistance project as estimated to cost in excess of 
        $1,000,000, until the head of the agency primarily responsible 
        for administering part I of such Act has received and taken 
        into consideration a report on the review of the proposed 
        capital assistance project, conducted by the Controller of such 
        agency with such assistance from other divisions of such agency 
        as he may request, which report shall set forth the 
        Controller's views, comments, and such recommendations as he 
        may deem appropriate with respect to the adequacy of the 
        justification, feasibility studies, and prospects for effective 
        utilization of such project.''. . .

        Mr. [John J.] Rooney of New York: Mr. Chairman, I must insist 
    upon my point of order to the pending amendment.
        The Chairman: (4) Does the gentleman from New York 
    wish to be heard on his point of order?
---------------------------------------------------------------------------
 4. Charles M. Price (Ill.).
---------------------------------------------------------------------------

        Mr. Rooney of New York: Yes. The point of order is based on the 
    fact that this puts language in the bill, by this amendment, which 
    would cause additional duties to be performed, and it is therefore 
    legislation on an appropriation bill.
        The Chairman: Does the gentleman from California desire to be 
    heard on the point of order raised by the gentleman from New York?
        Mr. Cohelan: Mr. Chairman, I was not aware that this procedural 
    point would be raised. It would seem to me that, on the basis of 
    the arguments that have been going on almost the entire afternoon, 
    and on the basis of the references made by my distinguished 
    colleague from Maryland in reference to the functions of the 
    Committee on Appropriations, that I will choose to regard my 
    proposal as a limiting amendment, and therefore germane to the 
    argument before us today.
        The Chairman: The Chair is ready to rule.
        The amendment offered by the gentleman from California adds a 
    new section to the bill which would impose additional duties, 
    determinations, and obligations upon the head of an agency that are 
    not now required under existing law. Therefore the Chair holds that 
    the amendment proposes additional legislation on an appropriation 
    bill.
        The Chair, therefore, sustains the point of order.

Requiring Monthly Reports on Small Business

Sec. 59.10 To an appropriation bill, an amendment which would require 
    the Department of Defense to make monthly reports showing the 
    amount of funds spent with small business as defined by the Small 
    Business Administration, and the funds spent with firms other than 
    small business in the same fields of operation, was held to be 
    legislation and therefore not in order.

[[Page 6201]]

    On May 12, 1955,(5) during consideration in the 
Committee of the Whole of the Defense Department appropriation bill 
(H.R. 6042), a point of order was raised against the following 
amendment:
---------------------------------------------------------------------------
 5. 101 Cong. Rec. 6244, 6245, 84th Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [Wright] Patman [of Texas]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Patman: In section 611, on page 
        37, at the end of line 9, strike the period and substitute a 
        colon and add the following language: ``Provided further, That, 
        for the purposes of aiding in carrying out the national policy 
        to insure that a fair proportion of the total purchases and 
        contracts for supplies and services for the Government be 
        placed with small-business enterprises, and to maintain and 
        strengthen the overall economy of the Nation, the Department of 
        Defense shall make a monthly report to the President, the 
        President of the Senate and the Speaker of the House of 
        Representatives not less than 45 days after the close of the 
        month, showing the amount of funds appropriated to the 
        Department of Defense which have been expended, obligated, or 
        contracted to be spent with small business as defined by the 
        Small Business Administration, and the amount of such funds 
        expended, obligated, or contracted to be spent with firms other 
        than small business in the same fields of operation; and such 
        monthly reports shall show separately the funds expended, 
        obligated, or contracted to be spent for basic and applied 
        scientific research and development.''

        Mr. [Harry R.] Sheppard [of California]: Mr. Chairman, I make a 
    point of order against the amendment on the ground that it is 
    legislation on an appropriation bill. It imposes new duties on the 
    Department which are not presently authorized by law. . . .

        The Chairman: (6) Does the gentleman from Texas 
    desire to be heard on the point of order?
---------------------------------------------------------------------------
 6. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------

        Mr. Patman: Yes, Mr. Chairman. The amendment is a limitation on 
    the language that is in the bill. It merely requires reporting to 
    be done.
        The Chairman: The amendment offered by the gentleman from Texas 
    imposes additional duties which are substantive in nature and, 
    therefore, the proposed amendment is legislation on an 
    appropriation bill. The Chair sustains the point of order.

Where Exception From a Limitation Requires New Duty

Sec. 59.11 An amendment to an appropriation bill providing that no part 
    of the appropriations therein shall be used to pay compensation of 
    any incumbent appointed to fill a vacancy, and providing that this 
    inhibition shall not apply to employees of certain agencies when 
    certified by the head of the agency to be employed on matters 
    essential to the national defense effort, was conceded to be 
    legislation and held not in order.

[[Page 6202]]

    On May 4, 1951,(7) during consideration in the Committee 
of the Whole of the independent offices appropriation bill (H.R. 3880), 
a point of order was raised against the following amendment:
---------------------------------------------------------------------------
 7. 97 Cong. Rec. 4914, 82d Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [Ben F.] Jensen [of Iowa]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Jensen: Page 63, after line 12, 
        insert a new section as follows:
            ``No part of any appropriation or authorization contained 
        in this act shall be used to pay the compensation of any 
        incumbent appointed to any civil office or position which may 
        become vacant during the fiscal year beginning on July 1, 1951: 
        Provided, That this inhibition shall not apply--
            ``(a) to not to exceed 25 percent of all vacancies;
            ``(b) to positions filled from within the agency;
            ``(c) to offices or positions required by law to be filled 
        by appointment of the President by and with the advice and 
        consent of the Senate;
            ``(d) to all employees in veterans' medical facilities;
            ``(e) to employees in the Atomic Energy Commission and the 
        National Advisory Committee for Aeronautics who are certified 
        by the head of the agency, in writing, as being directly 
        employed on matters essential to the National Defense effort;
            ``(f) to employees of the General Accounting Office;
            ``(g) to employees in grades CPC 1 and 2;
            ``Provided further, That when any department or agency 
        covered in this bill shall, as a result of the operation of 
        this amendment reduce their employment to a figure not 
        exceeding 80 percent of the total number on their rolls as of 
        July 1, 1951, such amendment shall cease to apply and said 80 
        percent figure shall become a ceiling for employment during the 
        fiscal year 1952 and if exceeded at any time during fiscal year 
        1952 this amendment shall again become operative.''

        Mr. [Albert] Thomas [of Texas]: Mr. Chairman, I make a point of 
    order against the amendment that it places an additional duty upon 
    several of the agencies involved and is, therefore, subject to a 
    point of order. For instance, this language is used: ``to employees 
    in the Committee for Aeronautics who are certified by the head of 
    the agency.''
        Now, that is placing an additional duty on the head of that 
    agency, extra duties and extra authority on him, therefore it is 
    subject to a point of order. Also it says: ``in writing, as being 
    directly employed on matters essential to the national defense.''
        He has got to make a decision there as to what is national 
    defense. He has to make a decision as to what is an essentiality. 
    Therefore, that is placing an additional duty beyond the scope that 
    is proper at this point and, therefore, it is subject to a point of 
    order. I suggest that the point of order go to the entire 
    paragraph. It should be stricken in its entirety.
        The Chairman: (8) Does the gentleman from Iowa [Mr. 
    Jensen] desire to be heard?
---------------------------------------------------------------------------
 8. James W. Trimble (Ark.).
---------------------------------------------------------------------------

        Mr. Jensen: Mr. Chairman, I concede the point of order.
        The Chairman: The point of order is sustained.

[[Page 6203]]

Authorizing Transfer of Trust Funds for Salary Increases

Sec. 59.12 Language in a general appropriation bill authorizing a 
    transfer of trust funds sufficient to pay increased salary costs 
    and imposing additional duties on the Administrator of Veterans' 
    Affairs was conceded to be legislation on an appropriation bill and 
    was ruled out by the Chair.

    On Apr. 10, 1963,(9) during consideration in the 
Committee of the Whole of a supplemental appropriation bill (H.R. 
5517), the following point of order was raised:
---------------------------------------------------------------------------
 9. 109 Cong. Rec. 6160, 6161, 88th Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I call attention to 
    the language in lines 15 through 20 on page 49, which reads as 
    follows:

            Sec. 203. The Administrator of Veterans' Affairs shall have 
        the authority to transfer not to exceed $1,795,000 from the 
        ``Loan guaranty revolving fund'' to any other appropriations of 
        the Veterans' Administration to pay for increased pay costs 
        authorized by or pursuant to law for fiscal year 1963 if in his 
        discretion he finds it necessary.

        Mr. Chairman, I make the point of order against the language of 
    section 203 on the ground that it is legislation on an 
    appropriation bill. I read from the report of the committee:

            The committee has included a provision which will enable 
        the Administrator in his discretion to use not to exceed 
        $1,795,000 from the loan guaranty revolving fund to cover the 
        cost of such pay increases if he finds it necessary.

        I submit this goes beyond the scope of the Appropriations 
    Committee and that it imposes additional duties upon the Director 
    of the Veterans' Administration.
        The Chairman: (10) Does the gentleman from Texas 
    desire to be heard on the point of order?
---------------------------------------------------------------------------
10. Richard Bolling (Mo.).
---------------------------------------------------------------------------

        Mr. [Albert] Thomas [of Texas]: I do, Mr. Chairman.
        Mr. Chairman, the point of order made by the gentleman from 
    Iowa is valid. . . .
        Mr. Gross: The gentleman will agree that the money will come 
    from the loan guarantee revolving fund and not from funds 
    appropriated to the Veterans' Administration specifically for 
    increased pay costs.
        Mr. Thomas: It is not from appropriated funds.
        Mr. Gross: And the war veterans could be penalized through such 
    use of revolving funds.
        Mr. Thomas: No, the veterans will not be penalized. It will 
    help them.
        Mr. Gross: Mr. Chairman, I insist on the point of order.
        The Chairman: The gentleman concedes the point of order made by 
    the gentleman from Iowa is well taken.
        The Chair sustains the point of order.

Extension of Foreign Service Appointments

Sec. 59.13 A provision in a general appropriation bill giving

[[Page 6204]]

    the Secretary of State authority to extend foreign service reserve 
    appointments through another year--thus changing the Secretary's 
    authority under existing law--was conceded to be legislation and 
    was ruled out on a point of order.

    On May 28, 1968,(11) during consideration in the 
Committee of the Whole of a general appropriation bill (H.R. 17522), a 
point of order was raised against the following provision:
---------------------------------------------------------------------------
11. 114 Cong. Rec. 15353, 90th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Sec. 106. Existing appointments and assignments to the 
        Foreign Service Reserve in the Department of State which expire 
        during the current fiscal year may be extended in the 
        discretion of the Secretary of State for a period of one year 
        in addition to the period of appointment or assignment 
        otherwise authorized.

        Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make a point of 
    order against the language beginning with line 25, on page 13, and 
    extending through line 5 on page 14 as being legislation on an 
    appropriation bill and as calling for added authority on the part 
    of the Department of State without the authority of Congress.
        The Chairman: (12) Does the gentleman from New York 
    desire to be heard on the point of order?
---------------------------------------------------------------------------
12. Wayne L. Hays (Ohio).
---------------------------------------------------------------------------

        Mr. [John J.] Rooney [of New York]: Mr. Chairman, I am 
    constrained to admit that the point of order is valid.
        The Chairman: The point of order is sustained.

Authority to Terminate Employment by Secretary of State

Sec. 59.14 Language in a general appropriation bill providing that the 
    Secretary of State may, in his discretion, terminate the employment 
    of any employee of the Department of State or the Foreign Service 
    whenever he shall deem such termination advisable in the interests 
    of the United States, was held to be legislation on an 
    appropriation bill and not to be a retrenchment within the 
    provisions of the Holman rule.

    On Apr. 20, 1950,(13) during consideration in the 
Committee of the Whole of a general appropriation bill (H.R. 7786), a 
point of order was raised against the following provision:
---------------------------------------------------------------------------
13. 96 Cong. Rec. 5480, 5481, 81st Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Sec. 104. Notwithstanding the provisions of section 6 of 
        the act of August 24, 1912 (37 Stat. 555), or the provisions of 
        any other law, the Secretary of State may, in his absolute 
        discretion, during the current fiscal year, terminate the 
        employment of

[[Page 6205]]

        any officer or employee of the Department of State or of the 
        Foreign Service of the United States whenever he shall deem 
        such termination necessary or advisable in the interests of the 
        United States. . . .

        Mr. [Vito] Marcantonio [of New York]: Mr. Chairman, a point of 
    order. The language of section 104 gives to the Secretary of 
    State--and I quote from the section--``in his absolute discretion 
    power to terminate the employment of any employee. I do not believe 
    we have ever had legislation in the entire history of this Nation 
    which contained this language ``absolute discretion.''. . . It is 
    my opinion that this language ``absolute discretion'' is a piece of 
    very undemocratic legislation on an appropriation bill and I make 
    the point of order against it. It should be stricken from the bill.
        The Chairman: (14) Does the gentleman from New York 
    [Mr. Rooney] desire to be heard on the point of order?
---------------------------------------------------------------------------
14. Jere Cooper (Tenn.).
---------------------------------------------------------------------------

        Mr. [John J.] Rooney: Mr. Chairman, this provision is 
    familiarly known as the McCarran rider and has been in the State 
    Department appropriation bill since 1947. . . . I oppose the point 
    of order, Mr. Chairman. I feel that having been in this bill since 
    1947 and because it is so necessary that our State Department be 
    what the public of America wants it to be, the language should be 
    continued in the bill.
        The Chairman: Does the gentleman from New York [Mr. Rooney] 
    concede that it is legislation?
        Mr. Rooney: Mr. Chairman, may I most respectfully state that on 
    this subject I will not concede anything.

        Mr. [John] Taber [of New York]: Mr. Chairman, in my opinion 
    this will result in a saving. It is in accordance with the 
    provisions of the Holman rule. When the power authorized in this 
    language is exercised and the Secretary terminates the employment 
    of any officer or employee in his absolute discretion that will 
    result in a saving. That will save money and is in order.
        The Chairman: The Chair is prepared to rule.
        . . . The Chair invites attention to the fact that the language 
    does confer definite authority and requires certain acts on the 
    part of the Secretary of State. In response to the argument offered 
    by the gentleman from New York [Mr. Taber] as to the application of 
    the Holman rule it is clearly shown by the precedents and decisions 
    of the House that the saving must be apparent and definite on its 
    face in the language of the bill in order for the Holman rule to 
    apply. Certainly an examination of the language in question clearly 
    shows that any saving would be speculative. In view of the long 
    line of precedents and decisions dealing with the question of 
    legislation on an appropriation bill, which is clearly prohibited 
    under the rules of the House, the Chair has no alternative other 
    than to sustain the point of order.

Requiring Certification of Security Clearance

Sec. 59.15 An amendment to an appropriation bill in the form of a 
    limitation providing that no part of any appropriation in the act 
    shall be used to pay the salary of

[[Page 6206]]

    any person appointed to the Department of State until essential 
    clearance as to loyalty has been certified by the Federal Bureau of 
    Investigation was held to be legislation on an appropriation bill 
    and not in order.

    On May 2, 1946,(15) during consideration in the 
Committee of the Whole of a general appropriation bill (H.R. 6056), a 
point of order was raised against the following amendment:
---------------------------------------------------------------------------
15. 92 Cong. Rec. 4366, 4367, 79th Cong. 2d Sess.
            See also 92 Cong. Rec. 2695, 79th Cong. 2d, Sess., Mar. 27, 
        1946.
---------------------------------------------------------------------------

        Mr. [Richard B.] Wigglesworth [of Massachusetts]: Mr. Chairman, 
    I offer an amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Wigglesworth: On page 32, line 23, 
        after the period insert a new paragraph reading as follows:
            ``No part of any appropriation in this act shall be used to 
        pay the salary or wage of any person appointed or transferred 
        to the Department of State after September 1, 1945, until 
        essential clearance as to loyalty has been certified by the 
        Federal Bureau of Investigation and the appropriate security 
        committee of the State Department.''. . .

        Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, I renew my 
    point of order and insist on it for the reason it is a direction 
    under the guise of a limitation which casts a serious reflection on 
    the personnel of the State Department and it will cripple their 
    activites. I know all Members of the House appreciate how serious 
    my own thoughts have been along the very same lines. I have 
    expressed myself time and time again on this and the hearings are 
    replete and filled with statements made by the chairman and other 
    members of the committee on that subject. We have brought this 
    forcibly to their attention, but this is too drastic an amendment.
        Mr. Chairman, I insist on the point of order. . . .
        The Chairman: (16) The Chair is ready to rule. . . .
---------------------------------------------------------------------------
16. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------

        The language through the figures ``1945'' is nothing other than 
    a limitation, perhaps; but the remainder of the language does 
    impose responsibilities and duties upon the Federal Bureau of 
    Investigation which it may not now be called upon to perform under 
    existing law.
        The Chair is, therefore, constrained to sustain the point of 
    order made by the gentleman from Michigan.

Requiring International Organizations to Pay Assessments in Arrears

Sec. 59.16 To a bill making appropriations for the Department of State, 
    including an item for contributions to various international 
    organizations, an amendment providing that none of the funds might 
    be expended until all other members of such organiza

[[Page 6207]]

    tions have met their financial obligations was ruled out as 
    legislation requiring determinations of indebtedness.

    On May 28, 1968,(17) the Committee of the Whole was 
considering H.R. 17522, a bill making appropriations for the 
Departments of State, Justice, and the Judiciary. The Clerk read as 
follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
17. 114 Cong. Rec. 15350, 90th Cong. 2d Sess.
---------------------------------------------------------------------------

        For expenses, not otherwise provided for, necessary to meet 
    annual obligations of membership in international multilateral 
    organizations, pursuant to treaties, conventions, or specific Acts 
    of Congress, $118,453,000.
        Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Gross: On page 5, line 13, replace 
        the period with a colon, and add the following:
            ``Provided, That none of these moneys shall be expended 
        until such time as the financial obligations, past and present, 
        of all other members of each multilateral organization to which 
        this paragraph applies, shall have been fully met.''. . .

        Mr. [John J.] Rooney [of New York]: Mr. Chairman, the point of 
    order is that the amendment would require someone to do additional 
    duties, to make a determination of what is suggested in this 
    amendment, and therefore it is subject to a point of order.
        The Chairman: (18)) Does the gentleman from Iowa 
    wish to be heard on the point of order?
---------------------------------------------------------------------------
18. Wayne L. Hays (Ohio).
---------------------------------------------------------------------------

        Mr. Gross: Only, Mr. Chairman, that it is patently a limitation 
    on the appropriation bill.
        The Chairman: The Chair believes that this amendment does 
    provide additional duties inasmuch as it says that none of these 
    moneys shall be expended until such time as national obligations, 
    past and present, and so on, shall be fully met, and therefore 
    somebody would have to make a pretty thorough study to decide 
    whether this has been met. Therefore, the Chair sustains the point 
    of order.

Restriction of Foreign Aid to Nations Believed to be Communist 
    Controlled

Sec. 59.17 To an appropriation bill, an amendment providing that no 
    part of any appropriation therein shall be used to make grants or 
    loans to any country which the Secretary of State believes to be 
    dominated by the foreign government controlling the world Communist 
    movement was held to be legislation.

    On July 11, 1955,(19) during consideration in the 
Committee of the Whole of the mutual security ap

[[Page 6208]]

propriation bill (H.R. 7224), a point of order was raised against the 
following amendment:
---------------------------------------------------------------------------
19. 101 Cong. Rec. 10245, 84th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Amendment offered by Mr. Murray of Illinois: Page 12, after 
        line 10, insert the following section:
            ``Sec. 109. No part of any appropriation contained in this 
        act shall be used to make grants or loans, or otherwise to 
        furnish assistance, to any country the government of which the 
        Secretary of State believes to be substantially directed, 
        dominated, or controlled by the foreign government or foreign 
        organization controlling the world Communist movement referred 
        to in section 2 of the Subversive Activites Control Act of 
        1950.''

        Mr. [Otto E.] Passman [of Louisiana]: Mr. Chairman, I reserve a 
    point of order against the amendment.
        Mr. [James C.] Murray [of Illinois]: Mr. Chairman, I am going 
    to be very brief. I think the language of my amendment speaks for 
    itself, and urge its adoption.
        Mr. Passman: Mr. Chairman, I make a point of order against the 
    amendment that it is legislation on an appropriation bill.
        The Chairman: (20) The amendment offered by the 
    gentleman from Illinois imposes on the Secretary of State 
    additional duties, and, in the opinion of the Chair, the imposition 
    of those additional duties constitutes legislation on an 
    appropriation bill. Therefore, the point of order is sustained.
---------------------------------------------------------------------------
20. Francis E. Walter (Pa.).
---------------------------------------------------------------------------

Curtailing Funds to Nations Restricting Emigration

Sec. 59.18 To a general appropriation bill containing funds for foreign 
    assistance, an amendment denying the availability of those funds to 
    any nation ``which requires payment above nominal and customary 
    costs'' for emigration permits was held to impose additional duties 
    of investigation and interpretation upon federal officials and was 
    ruled out as legislation in violation of Rule XXI clause 2.

    On Sept. 21, 1972,(1) during consideration in the 
Committee of the Whole of the foreign assistance appropriation bill 
(H.R. 16705), a point of order was raised against the following 
amendment:
---------------------------------------------------------------------------
 1. 18 Cong. Rec. 31835, 31836, 92d Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Charles A.] Vanik [of Ohio]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Vanik: On page 17, after line 12, 
        add the following new section:
            ``Sec. 506. None of the funds appropriated or made 
        available pursuant to this Act for carrying out the Foreign 
        Assistance Act of 1961, as amended, may be used to provide 
        loans, credits, financial and investment assistance, or 
        insurance guarantees on sales to or investments in any Nation 
        which requires payment above nominal and customary costs for 
        exit visas, exit permits, or for the right to emigrate.''

        Mr. [Otto E.] Passman [of Louisiana]: Mr. Chairman, I reserve a

[[Page 6209]]

    point of order against the amendment. . . .
        The Chairman:(2) The gentleman will state his point 
    of order.
---------------------------------------------------------------------------
 2. Charles M. Price (Ill.).
---------------------------------------------------------------------------

        Mr. Passman: The amendment imposes additional duties on the 
    executive branch in that it requires a determination as to what 
    constitutes a payment above normal and customary cost for exit 
    visas, permits, or the right to emigrate. I would not know how this 
    could be determined without imposing additional duties upon the 
    executive branch.
        Upon that basis I plead that the point of order should and I 
    hope it will be sustained.
        The Chairman: Does the gentleman from Ohio desire to be heard 
    on the point of order?
        Mr. Vanik: I do not feel that the ancient, decadent body of 
    precedent should prevent a Member from making a legitimate and 
    proper amendment to this bill. We should not be restrained in our 
    legislative efforts in dealing with present-day problems by the 
    dead hand of the past.
        I ask for a ruling, Mr. Chairman.
        The Chairman: The Chair is ready to rule. . . .
        The Chair has examined the amendment, and finds that it would 
    prohibit use of funds appropriated or made available pursuant to 
    this act, in any nation which requires payment above nominal and 
    customary costs for exit visas, exit permits, or for the right to 
    emigrate. It is apparent to the Chair that someone must make a 
    determination of the ``nominal'' and ``customary'' cost, thus 
    imposing additional duties on the executive branch; and therefore 
    in the opinion of the Chair the language constitutes legislation on 
    an appropriation bill. The Chair sustains the point of order.

Prohibiting Funds for International Organizations for Interest Costs

Sec. 59.19 An amendment to a general appropriation bill prohibiting the 
    availability of funds for international organizations to pay 
    interest costs for loans was ruled out as legislation, requiring 
    federal officials to make determinations not required by existing 
    law as to interest costs paid by international organizations.

    On Dec. 9, 1982,(3) during consideration in the 
Committee of the Whole of the Departments of Commerce, Justice, State, 
and the Judiciary appropriation bill (H.R. 6957), a point of order 
against an amendment was sustained as follows:
---------------------------------------------------------------------------
 3. 128 Cong. Rec.----, 97th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Amendment offered by Mr. [Neal] Smith of Iowa: On page 30, 
        line 2, after ``$449,815,000'' insert the following: 
        ``Provided, That none of the funds appropriated in this 
        paragraph shall be available for a United States contribution 
        to an international or

[[Page 6210]]

        ganization for any interest costs for loans incurred on or 
        after October 1, 1982.''. . .

        Mr. [Clement J.] Zablocki [of Wisconsin]: Mr. Chairman, I make 
    a point of order on the same basis that I have raised the point of 
    order on the proviso that was in the bill originally. This 
    amendment will still require the executive branch to make a 
    determination of what international organizations are paying 
    interest, and to what extent, and that this money would not 
    therefore be available in that portion of our U.S. assessment. So, 
    this goes beyond the present procedure that the executive branch is 
    required to make on our existing law.
        Therefore, the amendment of the gentleman from Iowa as 
    substituted for the original language in the bill would clearly 
    impose upon the executive branch the new duties not now required by 
    law; and, I submit, still fundamentally legislation in an 
    appropriation bill and is in violation of the letter and spirit of 
    clause 2, rule XXI. I hope that the point of order will be 
    sustained. . . .
        It is the understanding of the gentleman from Iowa that in 
    order to make a determination as to the amount of interest, the 
    executive branch would have to require the organizations to make an 
    investigation to what extent interest payments are included in the 
    U.S. assessment. May I further ask, would the gentleman's amendment 
    also require that conditions be imposed on our contribution 
    requiring an agreement with the United Nations that we now do have 
    as far as our assessment, but not as far as to what the proviso or 
    the amendment of the gentleman from Iowa provides?
        Mr. Smith of Iowa: Mr. Chairman, I do not think we get into 
    what kind of an agreement may be necessary here. We do not even 
    attempt to do that. But they have the records that would be 
    necessary anyway in reviewing their contributions and how much we 
    owed the United Nations. The State Department has those records 
    anyway. They have to have them in order to make the payments. So 
    there is not anything extra here other than some incidental matter 
    of looking at some papers.
        The Chairman: (4). . . The gentleman from Wisconsin 
    (Mr. Zablocki) makes a point of order with regard to the amendment 
    offered by the gentleman from Iowa (Mr. Smith) for essentially the 
    same reasons that he used against the original proviso, in that it 
    constitutes legislation on an appropriations bill by virtue of the 
    fact that it imposes additional duties upon the executive branch.
---------------------------------------------------------------------------
 4. George E. Brown, Jr. (Calif.).
---------------------------------------------------------------------------

        It is the opinion of the Chair that the gentleman from 
    Wisconsin (Mr. Zablocki) is correct, that there are additional 
    duties which are not trivial which are imposed upon the executive 
    branch, to determine interest amounts and, therefore, the Chair 
    sustains the point of order.

    Parliamentarian's Note: The amendment offered above by Mr. Smith 
sought to achieve the same result as language that had been ruled out 
of order when carried in the original bill. [See Sec. 52.31, supra, for 
the language of the bill

[[Page 6211]]

and the ruling on the point of order.] Subsequently, on Dec. 9, Mr. 
Smith offered the following amendment:

        Amendment offered by Mr. Smith of Iowa: On page 30, line 2, 
    after ``$449, 815,000'' insert the following: ``Provided, That none 
    of the funds appropriated in this paragraph shall be available for 
    a United States contribution to an international organization for 
    those interest costs made known to the United States Government by 
    such international organization for loans incurred on or after 
    October 1, 1982.

The amendment in this form was not subject to a point of order. See 7 
Cannon's Precedents Sec. 1695, where information ``already known'' to a 
federal official was held in order as a proper limitation not requiring 
new determinations. Where the language on its face merely recites a 
passive situation as a condition precedent for receipt of funds, as 
opposed to imposing an ongoing responsibility on a federal official to 
ascertain information, the language may be a proper limitation.

Limiting Funds for Medical Expenses to Percentage of Customary Charges

Sec. 59.20 A portion of a paragraph in a general appropriation bill 
    denying the use of funds therein under the CHAMPUS program for 
    reimbursement of health care providers in excess of the 80th 
    percentile of customary charges made for similar services in the 
    same locality was ruled out as legislation in violation of Rule XXI 
    clause 2, where existing law did not impose an affirmative 
    requirement for such determinations but merely authorized issuance 
    of regulations on the subject of reimbursement, even though federal 
    officials were in fact already making such findings pursuant to 
    regulations.

    On Aug. 8, 1978,(5) during consideration in the 
Committee of the Whole of the Department of Defense appropriation bill 
(H.R. 13635), a point of order was sustained against the following 
provision in the bill:
---------------------------------------------------------------------------
 5. 124 Cong. Rec. 24959, 24960, 95th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Sec. 844. None of the funds contained in this Act available 
        for the Civilian Health and Medical Program of the Uniformed 
        Services under the provisions of section 1079 (a) of title 10, 
        United States Code, shall be available for . . . (f) 
        reimbursement of any physician or other authorized individual 
        provider of medical care in excess of the eightieth percentile 
        of the customary charges made for similar services in the same 
        locality where the medical care was furnished. . . .

[[Page 6212]]

        Mr. [Elwood H.] Hillis [of Indiana]: Mr. Chairman, I make a 
    point of order against the language of section 844(f) on the 
    grounds that it violates rule XXI, clause 2 of the rules of the 
    House in that it constitutes legislation in an appropriation bill.
        Section 844 refers to section 1079(a), title 10 of the United 
    States Code. However, section 1079(a) states that the ``methods for 
    making payment shall be prescribed under joint regulations issued 
    by the Secretary of Defense and the Secretary of Health, Education, 
    and Welfare.''. . .
        Mr. Chairman, I also cite section 842 of Jefferson's Manual 
    which states in part that--

            Propositions to establish affirmative directions for 
        executive offices even in cases where they may have discretion 
        under the law so to do are subject to a point of order.

        While section 1076 of title 10, United States Code grants the 
    Secretary authority to promulgate regulations, part (f) of section 
    844 of this bill dictates to him the method of determining payments 
    thereby eliminating any discretionary authority on his part. This 
    is clearly legislation insomuch as it requires the Secretary to 
    determine customary charges made for similar services in the same 
    locality where the medical care was furnished. Nowhere in the 
    permanent law is the Secretary required to make these 
    determinations. . . .
        Mr. [George H.] Mahon [of Texas]: Mr. Chairman, this provision 
    in the defense bill grows out of the legislation establishing the 
    CHAMPUS operation. The committee maintains that the language in the 
    bill specifically provides for a limitation in expenditures and 
    that the provision in the bill is not subject to a point of order.
        The Chairman: (6) What the gentleman from Texas (Mr. 
    Mahon) suggests does not apply to that part of the paragraph to 
    which the gentleman from Indiana (Mr. Hillis) makes the point of 
    order.
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 6. Daniel D. Rostenkowski (Ill.).
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        The Chair observes that the language does require a 
    determination as to what local and customary charges are, and there 
    is nothing presently in existing law that requires those 
    determinations to be made during the next fiscal year. The 
    authorization bill containing such authority is not yet law.
        The Chair sustains the point of order with respect to 
    subparagraph (f) to which the gentleman referred.

    Parliamentarian's Note: The authorizing law was later amended to 
require the determination of customary charges.

Limiting Funds for International Narcotics Control; Requiring New 
    Duties

Sec. 59.21 To a foreign aid general appropriation bill, an amendment 
    prohibiting the use of international narcotics control funds 
    contained therein for the eradication of marihuana through the use 
    of paraquat unless used with another substance which effectively 
    warns potential users of the marihuana that

[[Page 6213]]

    paraquat has been used on it, was ruled out as legislation 
    requiring new duties and determinations of the executive branch 
    (where an authorization bill requiring similar findings had not yet 
    been signed into law).

    The ruling of the Chair on Aug. 4, 1978,(7) was that, 
while a limitation on the use of funds in a general appropriation bill 
does not constitute a violation of Rule XXI clause 2 if it merely 
restates identical language in existing law, the legislation in 
question must have been signed into law. The proceedings are discussed 
in Sec. 23.24, supra.
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 7. 124 Cong. Rec. 24436, 24437, 95th Cong. 2d Sess.
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